Citation NR: 9704689
Decision Date: 02/10/97 Archive Date: 02/19/97
DOCKET NO. 95-01 373 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for a respiratory disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sonya Gidumal Chazin, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1968
until January 1970.
This appeal arises to the Board of Veterans’ Appeals (Board)
from a March 1994 rating decision of the Pittsburgh,
Pennsylvania Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied service connection for a
lung condition. The veteran appeared and presented testimony
at a September 1994 hearing on appeal held at the RO.
The Board notes that the issue of entitlement to an increased
evaluation for a left shoulder disability was previously on
appeal. By rating action in November 1994, the RO increased
the disability rating to 20 percent. In March 1995, the
veteran submitted a letter wherein he stated that he did not
want to further pursue an appeal for a increased rating for a
left shoulder disability. As such, that issue is no longer
before the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his respiratory disorder is due to
the shell fragment wound he sustained in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence of a well-grounded claim for service connection for
a respiratory disorder.
FINDING OF FACT
There is no medical evidence demonstrating that the veteran’s
respiratory disorder is related to service or to any event in
service.
CONCLUSION OF LAW
The claim for service connection for a respiratory disorder
is not well-grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran’s service medical records show that in March
1969, he was wounded in a mine explosion. It was noted that
he had a fragment wound of the calf and scapular region, and
there was no nerve or artery involvement. In July 1969,
rhonchi in the right base of the lung, which cleared post-
tussively, was noted. A chest x-ray was taken, and there was
no pathology seen.
In June 1970, a VA examination was conducted. It was noted
that the respiratory system was clear to auscultation and
percussion. A chest x-ray was negative except for a small
metallic foreign body (6 millimeters) over the left apex.
A chest X-ray report, dated in June 1975, recorded the
cardiac silhouette, hilar areas, lungs and pleura as normal.
Noted was the presence of a metallic-like density in the left
upper lobe, adjacent to the sternal end of the left clavicle.
The veteran’s private physician wrote in December 1982
regarding the effects of the veteran’s shell fragment wound
of the left shoulder. He noted the scar tissue over the left
scapula area, “unchanged over the years,” but did not mention
a lung or respiratory disorder.
In July 1993, another VA examination was conducted. The
veteran complained of recurrent hemoptysis during episodes of
upper respiratory tract infection, since 1970. He
occasionally had some epistaxis, but denied any shortness of
breath. He further stated that he had been told that he had
shrapnel in his left chest. The lung examination showed
diminished breath sounds bilaterally, but was otherwise clear
with no crackles or wheezes. The examiner indicated that
there were no structural changes in the lungs, and that the
veteran had no pulmonary residuals of previous injuries. The
report of chest X-rays indicates that the cardiovascular,
mediastinal, and hilar patterns were within normal limits.
The lung fields were well aerated and clear. There was a
small metallic density projected through the left apex which
was not localized by the lateral view. There was no apparent
pneumothorax or pleural effusion. Bony structures were
intact. The impression was no active cardiopulmonary
disease. The examiner noted that the veteran’s chest X-ray
showed a small density in the left apex, but it was not
visualized in the lateral view, which would make it more
likely that veteran probably had a chest wall shrapnel
implementation. Otherwise, there was no acute
cardiopulmonary diseases. The diagnoses were mild
obstructive airway disease, history of shrapnel injury to the
chest, and recurrent hemoptysis, rule out chronic bronchitis.
A person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well-grounded.
The Secretary shall assist such a claimant in developing the
facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus,
the threshold question to be addressed in this case is
whether the appellant has presented evidence of a well-
grounded claim. If not, the appeal must fail, because the
Board has no jurisdiction to adjudicate the claim. Boeck v.
Brown, 6 Vet.App. 14, 17 (1993). There is no duty to assist
further in the development of the claim, because such
additional development would be futile. See Murphy v.
Derwinski, 1 Vet.App. 78 (1990). As will be explained below,
the Board finds that the claim for service connection for a
respiratory disorder is not well-grounded.
A well-grounded claim is a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of 38 U.S.C.A. § 5107(a). Murphy, at 81. To
be well-grounded, however, a claim must be accompanied by
evidence that suggests more than a purely speculative basis
for granting the requested benefits. Dixon v. Derwinski, 3
Vet.App. 261, 262-263 (1992). Evidentiary assertions
accompanying a claim for VA benefits must be accepted as true
for purposes of determining whether the claim is well-
grounded, unless the evidentiary assertion is inherently
incredible or the fact asserted is beyond the competence of
the person making the assertion. Espiritu v. Derwinski, 2
Vet.App. 492 (1992). Where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is plausible or
possible is required. Murphy, 1 Vet.App. at 81. A claimant
would not meet this burden merely by presenting lay
testimony, because lay persons are not competent to offer
medical opinions. Espiritu, 2 Vet.App. at 495.
A claim for service connection requires three elements to be
well-grounded. It requires competent (medical) evidence of a
current disability; competent (lay or medical) evidence of
incurrence or aggravation of disease or injury in service;
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability. This
third element may be established by the use of statutory
presumptions. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
In this case, what is lacking is medical evidence linking the
veteran’s current respiratory disorder to service. The Board
notes that the veteran has been reported to have a small
metallic fragment in the chest. There is no evidence,
however, that the fragment is in the lung or is the cause of
his mild obstructive airway disease or recurrent hemoptysis.
The only person who has linked his current respiratory
disorder to service is the veteran himself. However, absent
presentation of competent medical evidence establishing
causation of the veteran’s respiratory disorder, relating it
to service or to a service-connected disorder, his claim may
not be considered well grounded for lay persons are not
competent to offer medical opinions. Moray v. Brown, 5
Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91
(1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As
such, due to the lack of any credible evidence of the
required nexus, the veteran’s claim for service connection
for a respiratory disorder must fail.
The Board notes that VA may be obligated to under 38 U.S.C.A.
§ 5103(a) (1991) to advise a claimant of evidence needed to
complete an application for a claim. This obligation depends
upon the particular facts of the case and the extent to which
the Secretary of the Department of Veteran Affairs has
advised the claimant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet.App. 69 (1995). In this instance, the RO fulfilled its
obligation under section 5103(a) in the statement of the case
which informed the veteran of the reasons for the denial of
his claim. Furthermore, by this decision, the Board is
informing the appellant of the evidence which is lacking and
that is necessary to make the claim well-grounded.
ORDER
In the absence of a well grounded claim, service connection
for a respiratory disorder is denied
W. HARRYMAN
Acting Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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